Do you have questions about:

• What happens to the deed of our home should one of us pass away? 

There are various options to get the title cleared up so that there are no legal impediments to selling the property at some point in the future. For example, if the will clearly gives the entire ownership of the home to the surviving spouse and the property is located in the same county as the county of probate, then filing a certified copy of the will and the court order admitting the will to probate in the Deed Records of the county where the real estate is located should sufficiently identify the surviving spouse as owner of the home. Another option may be completing and filing a Distribution Deed in the Deed Records which establishes that the deceased spouse has gifted his share of the home to the surviving spouse.

• Can we avoid probate if we put the deed of our home in our names with right of survivorship?

For a husband and wife, this would seem to be an easy solution to avoid probating the home because the surviving spouse is the remaining owner of the property. But there are some practical considerations. For example, some third parties—like lenders and title companies—are reluctant to recognize this co-ownership form for real estate in Texas. Some title companies will not insure title to Texas property owned in joint tenancy with right of survivorship. Lenders may also be skittish with joint tenancy with right of survivorship language in the loan documents. Thus, a couple should evaluate whether these practical roadblocks may cause problems before filing a deed with right of survivorship.​ Also remember that when the second spouse passes away, there still needs to be a plan to transfer ownership of the home.

• Do I really need a will when my retirement plan and life insurance already permit beneficiary selection?

Retirement accounts and life insurance are characterized as non-probate assets because upon death the funds are distributed to named beneficiaries. However, most people own some probate assets, and if you do not have a will, then those assets will be transferred through the intestacy laws of Texas. Given the relatively streamlined procedure of independent administration of probate assets in Texas, a will is usually a cornerstone of your plan.​

• What can I do to protect myself if I am no longer capable of making decisions?

There are several types of powers of attorney which allow you to choose one or more persons, whom you trust and who understand your priorities, to make financial and/or medical decisions on your behalf. There are some laws which allow your spouse and other close family members to make medical decisions for you, but no such laws exist for financial transactions.​

• I created a will from a DIY website. Why should I contact an attorney?

There are some occasions when it makes sense to do something yourself. For example, a single person who just graduated college and has very few assets. However, once you marry, have children, and begin to accumulate assets, things become more complicated and it is a good idea to work with an attorney to make sure that your contingency plan is set up the way you want it to work.​

• I had a will executed 5 years ago through an attorney so I am all set. Right?

You may or may not need to make changes to your plan. When you have big changes in your life--have a child, acquire a new home or other assets--it is recommended that you meet with an attorney to discuss those changes to see if anything needs to be changed in your plan. Otherwise, meeting with an attorney every 3 to 5 years to review your plan is a good idea. There may be some changes in your life that you did not realize created needed changes or there may be some changes in the law which requires some modifications to your plan.​